United States District Court, D. New Jersey
Tysheim Murphy, Petitioner Pro se.
G. Tyner, Atlantic County Prosecutor John J. Santoliquido,
Assistant Prosecutor Atlantic County Prosecutor's Office,
Attorneys for Respondents.
L. HILLMAN, U.S.D.J.
matter comes before the Court on Petitioner Tysheim
Murphy's motion for an evidentiary hearing on two issues
presented in his Petition for Writ of Habeas Corpus under 28
U.S.C. § 2254. ECF No. 24. Respondents Patrick Nogan and
the New Jersey Attorney General oppose the motion. ECF No.
25. For the reasons that follow, the Court will deny the
motion for an evidentiary hearing as premature. Respondents
are ordered to answer Grounds One through Eight and Eighteen
through Twenty-three of the second amended habeas petition.
filed this § 2254 petition on April 28, 2017. ECF No. 1.
The Court administratively terminated the petition as it was
not on the correct form for habeas petitions and Petitioner
did not pay the filing fee. ECF No. 3. Petitioner paid the
filing fee and submitted the second amended petition on July
12, 2017. ECF No. 7. He also filed a motion to stay
the habeas proceedings while he exhausted his state court
remedies on his claim that his post-conviction relief
(“PCR”) counsel was ineffective. ECF No. 8. The
Court reopened the matter and directed Respondents to file a
response to the motion to stay only. ECF No. 10. The motion
to stay was denied on March 16, 2018. ECF No. 16.
April 4, 2018, Petitioner filed a letter, docketed as a
Motion to Amend, asking for an extension of time to file a
“more comprehensive brief to better articulate all my
issues . . . .” ECF No. 17 at 1. He subsequently filed
a brief and exhibits on June 19, 2018. ECF No. 20. The Court
denied the Motion to Amend. ECF No. 22.
20, 2019, Petitioner filed the instant motion for an
evidentiary hearing on two issues: (1) whether trial counsel
was ineffective for failure to call or secure the presence of
a witness at trial; and (2) whether trial counsel mislead
Petitioner into believing the witness would be testifying at
trial, thereby inducing Petitioner to reject the plea offer.
ECF No. 24 at 5-6. Respondents oppose the motion, arguing
that Petitioner has presented no new evidence beyond the
evidence presented to and rejected by the state courts. ECF
brings this petition for a writ of habeas corpus as a pro se
litigant. The Court has an obligation to liberally construe
pro se pleadings and to hold them to less stringent standards
than more formal pleadings drafted by lawyers. Erickson
v. Pardus, 551 U.S. 89, 94 (2007); Higgs v. Attorney
Gen. of the U.S., 655 F.3d 333, 339 (3d Cir. 2011), as
amended (Sept. 19, 2011) (citing Estelle v. Gamble,
429 U.S. 97, 106 (1976)). A pro se habeas petition and any
supporting submissions must be construed liberally and with a
measure of tolerance.
2254(a) of Title 28 provides in relevant part:
(a) [A] district court shall entertain an application for a
writ of habeas corpus in behalf of a person in custody
pursuant to the judgment of a State court only on the ground
that he is in custody in violation of the Constitution or
laws or treaties of the United States.
28 U.S.C. § 2254(a). “If it plainly appears from
the petition and any attached exhibits that the petitioner is
not entitled to relief in the district court, the judge must
dismiss the ...